Here are the keys.
In any country there will be two types of law books.
1) Simple text of law in about 50 to 100 page. Low priced books.
2) On same law, there will be 500 to 700 page books. These books will contain gist of previous similar cases decided. In these cases, there will be cases where court have acquitted. These are very High Priced Books.
These cases should be compared with facts of our case.
The courts usually follow their previous decisions.
Haresh Raichura
30/11/15
The laws relating to cruelty between husband and wife, are different in India than the laws of cruelty in advanced countries.
There, the cruelty must be accompanied by some physical injury.
So that on basis of nature of physical symptoms, judge can say whether punishable cruelty has happened or not.
In India, there is no clear cut definition of cruelty. Cruelty is allowed to be kept as a loose and a floating concept.
Because of this, from case to case, from judge to judge, concept of what is mental cruelty and what is not is developed.
It is an uncertain concept.
How mental cruelty is to be proved in court?
It is not necessary to prove physical injury. So how will a judge know whether wife is telling lie or not?
It all now dependence on how parties speak in court and how they present oral evidences.
No doubt, this law is causing great uncertainty in family disputes.
Haresh Raichura(c)
4/7/15
1) Lawyers who woke up Supreme Court Judges at midnight may have good hope that court will extend time to execute death warrants by 14 days.
Because general law is : When Court fixes that something to be done in certain time, then court can extended if there are sufficient reasons to do so.
2) As per media reports :
A) One reason was that "Second Clemency petition has been rejected by President just now. Thereafter 14 days time should be given from now on.
This argument presuppose that any number of clemency petitions can be filed and After last clemency petition is rejected, 14 days should be given.
This argument did not stand.
Because there is no law that any number of clemency petitions can be filed after main clemency is rejected.
Secondly, If you accept this argument, and give 14 days, than another clemency petition can be filed after 10 days... And after its rejection another 14 days.....etc...so on..
The argument failed.
2) Second argument was, 14 days time should be given so that relatives can meet.
This argument failed because, the Supreme Court was told that relatives were already there and the warrant was issued 90 days ago... Ample time was already given.
So this argument also failed.
The Judges must have felt that same arguments are being repeated again and again and no plausible ground is made out to extend warrant by 14 days which could if done, indirectly meant almost setting aside warrant, a prayer which was rejected in afternoon. It was not possible for judges since no good reason was pointed out to them.
(This views are personal and based on media reports. I may be wrong)
Haresh Raichura
31/7/2015
1) Heinous crimes like murder, are punishable with punishment in jail for life or by death.
2) The section does not say when to give life imprisionment and when to give death. Therefore Supreme Court has laid down law and defined category of "Rarest of Rare" Crime, and has said that death sentence be given in Rarest of Rare crime. In all other cases of murders, life imprisonment.
3) There is no fix definition of what is Rarest of Rare Crime. But in brief, such crimes are those which shock the conscience of society as a whole.
4) If trial court grants death sentence, then case is deeply examined by High Court. And then High Court judgement is examined by Supreme Court to eliminate chances of human error.
5) The President and The Governors have power to commute death penalty into life imprisonment. But they are also bound to follow some norms.
Haresh Raichura
29/7/2015
To those who are not familiar with Supreme Court, this may be a new thing.
Here, judges normally sit in benches of "Two" Judges. If one of the two judge disagrees about order to be passed, then normally matter is referred to Chief Justice to place matter before another 2 Judges or 3 Judge Bench.
In meanwhile, if some stay is required, it is normally granted.
Haresh Raichura
28/7/2015
If a FIR is registered, then only High Court or Supreme Court can quash it.
Usually a petition under Sec.482 of Cr.P.C is filed in High Court.
Such petition usually say that:
1) FIR does not disclose crime,
2) It is abuse of criminal law.
3) Or that, it is barred by some law.
Such petition is accompanied by a copy of FIR and relevant documents on basis of which petitioner wishes to argue his case.
If High Court refuses to quash FIR, than the aggrieved person can approach Supreme Court under Art.136 of Constitution of India.
Haresh Raichura(c)
26/7/2015
All people are not emotionally equal. Some people think that the world is a kind and just place to live.
When they feel that some false FIR or False Case is filed against them, their illusions about world crashes. Their emotions get fired and they begin to see Worst Case Scenario all the time, day and night for weeks and months.
In addition, lifeless and machine like atmosphere of courts put extra fears and angers on them.
These all together, impairs their ability to think rationally and calmly. They take wrong decisions and they themselves injure their case.
To handle such clients is very difficult even for their lawyers.
So the first thing for such people is to keep calm. They should try to think that whatever may happen, "Sky is not going to fall."
Then they should think stage by stage. The court process is long consisting of several stages. Focus should be on next stage only.
Haresh Raichura(c)
26/7/2015
The principle called Res Judicata means that parties are not allowed to agitate same issue again once it has been decided finally by court.
In 498A, situation is little different. Each event of cruelty gives rise to a fresh case of 498A.
There are cases were wife had filed several cases of 498A. The court directed that all cases be tried together.
Suppose in some case, compromise is recorded in court, allegation of 498A are dropped wife. But even then, if wife alleges new incidents of cruelty, fresh case of 498A lies. But this new case cannot reopen old incidents. Only new events of cruelty will be tried in this new case.
Then what is the value of compromise? What is the value of the fact that previously also wife had filed and dropped such cases?
These facts are relevant for considering conduct of wife. If the wife is in habit of filing and dropping such cases, it dents her creditability and the judge may refuse to believe her.
Haresh Raichura (c)
25/7/15
Exception 2 to Sec 499 IPC
Law of Defamation of public men.. In shortest form.
1) Every citizen has a right to comment on those acts of public men which concerns him as citizen of the country...A writer in a public paper has the same right, and it is his privilage, if indeed it is not his duty, to comment on acts of public men which concern public.
Vide : E.I. Howard v M. Mull, 1866 (1) BHC (Appx) lxxxv,xci
2) Supreme Court : Those who fill a public position must not be too thin skinned in reference to comments made upon them. Whoever fills a public position renders himself open to attack. He must accept an attack as a necessary, though unpleasant, appendage to his office.
Vide : Kartar Singh AIR 1956 SC 541
Haresh Raichura
24/7/2015
Yesterday, I overheard about this incident.
A lawyer in District Court moved temporary bail application for his client. Application was attached with a apparently false medical certificate.
At top, date was different. Below his signature, the doctor had put another date.
It was obvious that certificate was prepared and signature of doctor was obtained on letter date.
The Judge was not amused.
He issued notice to Bar Council and also to medical council and also to Doctor.
Moral of story : A lawyer should carefully check medical certificate. Given by client.
Haresh Raichura
21/7/15
The crucial part of the judgement is as under :
“We are not framing guidelines but we have laid down constitutional principle and appropriate writ courts will decide when the postponement order has to be passed on case to case basis".
The full judgement can be searched on Google for those who want to study this issue more deeply.
The above key is the direction to legal steps which can be taken to restrain media.
Haresh Raichura
12/7/2015
1) In Pre Independence Day, CBI was formed by a resolution to investigate corruption in central govt offices at Delhi.
2) Then, CBI was put under Delhi Police Act.
3) It is a force of Central Govt. It takes cases suggested by Central Govt. Any State Govt can ask Central Govt for help of CBI in any State crime. HCs and SC can also order them to probe any case.
4) No difference between CBI and other Police, once FIR is,registered. Both are then controlled by Criminal Procedure Code..
5) CBI has published a Manual guiding how its inspectors will investigate crimes. It can be seen on their website. No such manuals are seen in State Police Dept.
6) CBI officers are controlled administratively by Central Govt. Other State police is controlled by their state govts.
7) There is not much difference between the two.
It is only a matter of public perception.
Mainly, when a case is given to CBI, state functionaries cannot control CBI officers. This is the main reason for its existence.
Haresh Raichura (c)
9/7/15
The procedural laws are changing very fast.
Before any Case can be started, the Court has to serve summons of case on accused or respondent.
These summons are often returned as accused may have left, gone abroad, or may have gone underground. Or he may be just playing hard and seek with Court.
Courts have evolved various procedures to deal with such cases..
All procedures are not discussed here, but I have discussed only few points.
Points
1) Service of summons by Email is now well known.
2) Service by Facebook. Recently, in one foreign case, a wife had filed divorce case. The husband was not receiving summons. The Court allowed Wife to serve summons on husband through Facebook Post.
3) If Facebook is allowed, Twitter, SMS, LinkedIn other media can also be allowed if court is satisfied about identity of receipent of such message.
4) The initiative has to be taken by creative lawyers. They have to apply to court with necessary details of social media accounts of respondents on whom summons are to be served.
5) Remember. All procedures are only handmaids of Justice. The judges can evolve new procedures with changes in time.
(C) Haresh Raichura
07/07/2015
Here is a small mini checklist to let you know when you can challenge any Govt order (or order of any Govt controlled body) in any High Court by filing a writ petition under Art. 226
MINI CHECK LIST OF POINTS
1) The order (or inaction) to be challenged in High Court, must be by a govt body or by a govt controlled body.
Even a private Trust or Private company can have to answer court if they are in public service areas. (BCCI is a private body...And yet some of its orders can be challenged in High Court)
2) The order must have been passed contrary to stated policy or rules.
3) Or the order is not based on any rule or policy
4) Order is such that same category of people are being treated differently,
5) Or order is such that it treats unequal category of people as if they are equal,
6) Or the order is passed in such a way that no prudent and reasonable person can pass such order,
7) Or, order is passed on basis of some material which is not relevant at all.
8) Or, while passing order, some material and relevant documents were not looked into.
Together, or separately, amounts to violation of fundamental right of equality under Art.14
Haresh Raichura
1/7/2015
Know that Rape is serious. Police bound to register FIR even if complained after delay of a year or more :
7 Points:
1) Serious Crime never dies. FIRs can be registered any time.
2) Only small crimes have time lines and time limits.
After some years, small crimes can be registered only after court condones delay.
3) In rape cases, woman often lives under fear many months after crime takes place on her body. She may be afraid of social publicity, defamation, mental trauma etc..
4) So if FIR or complaint is filed after long delay, all she need to do is to explain why the delay took place.
5) Even if she cannot explain delay, it does not mean that trial will not take place. Trial will take place and judge has to check all available evidence including statement of girl on oath.
6) Rape is not compoundable.
The case cannot be compromised by consent of victim.
7) Presently, scientific evidence in rape trials are not of desired standard.
But gradually, evidence regarding DNA, finding of sperm on clothes, injuries on body, email trails, sms exchanges, call records etc should be given more importance.
Haresh Raichura
21/07/2015
1) Order Specific Contempt of Court, means there was a specific order of court "To do something" or "To not do something."
When someone disobeys or refuses to obey order, contempt of court happens.
2) When some one brings any Judge in to dispute, by writing, speaking, or publishing which will lower image of judge in public, it is second type of contempt.
Here, either a) Judge or b) Higher court can issue notice of contempt. If anybody else wants to file contempt on basis of such material, it is not easy.
He has to First Apply by filing an Application for permission to Attorney General or Advocate General. If such permission is given, then only contempt petition is maintainable.
Haresh Raichura
1) Many banks or telecom companies use Recovery Agents to collect their old dues instead of filing cases.
2) Some of these dubious recovery agents makes a fake call that a non bailable warrant is issued against you. Or pretends to be a police officer and asks you to contact a given number.
3) Frightened person contacts the number who pretends to be a lawyer or a clerk of some lawyer and asks him to settle account with bank or telecom company to avoid arrest.
4) Many people get frightened and pay up the claims or bills even if the bills or claims are disputed.
Steps to which can be taken.
1) Check origin of number on caller identification apps on internet.
2) Ask for specific details about caller and case numbers.
3) If caller asks you to pay up dues of some bank or some telecom company, then send and email to them asking if they have authorised this call or not. Ask them specific details if they have filed any complaint or case against you.
4) Seek advice of your lawyer.
Haresh Raichura
Disclaimer: This article is based on experiences told by my clients and this is only for information. Please contact your lawyer for legal advice.
Probably there are three circumstances provided in this Article where LG can act against or independent of opinions of Ministers of Delhi.
1) About specific matters within discretionary powers of Governor
2) Matters on which he differs with Ministers of Delhi.... Here he will ask opinion of President, and while awaiting opinion, he can decision against wishes of ministers if there is emergency.
3) Regarding 3rd Circumstance, "Silence of Constitution provision" applies. What to do if Ministers just keep sitting on file, neither agree nor disagree..... Here also LG has power to take decision assuming either implied consent of ministers or assuming implied disagreement of ministers. In both cases he has power to take decision independent of advice of ministers.
This is of course my personal view. Please check Article 239AA (4) Proviso, itself for authentic view. I have not come across a precedent on this issue.
Haresh Raichura
16th May 2015
This is called Law of Torts.
If a woman enters into illicit relation with a married man, she is in fact trying to alienate him from his wife and children.
This is an act of Tort. The wife and children of married man can sue this woman for damages in civil court.
Supreme Court has clarified this in case of I versus V K V reported in 2013 (15) SCC 755 Justice K S P Radhakrishnan and Justice P C Ghose
Haresh Raichura
11/5/2015
Copyright : Haresh Raichura 2014. All Rights reserved.
Muslim wife. Asks for maintainance under Sec. 125.
Husband retaliates and gives divorce.
Wife still entitled to maintenance.
Her application for maintenance under Sec.125 will not be dismissed on husband giving her divorce.
Please see detailed discussion in Supreme Court judgement in case of Shamim Bano reported in 2014(12) SCC 636
Haresh Raichura
8/7/15
Copyright : Haresh Raichura 2014. All Rights reserved.
High Court guidelines for protection of children in playschools, kindergarten schools, prep primary schools
Small children should not be burden with books and other study materials. Their tender minds should not be burdened.
Detail guidelines are given by justice Sikri In case titled Social Jurist versus Govt of Delhi.
Here is full text of judgement
Haresh Raichura
7/7/15
Two Lama discuss 'How Judges Rate Lawyers & Theory of Entangled Quantum Leap'
(An imaginary piece inspired from a recent speech of a SC Judge to AOR Association)
(1)
Many Years Ago
In southern India
In a tall High Court,
Before a two judge bench,
A tall senior advocate arguing,
First he argued vehemently
And then he argued ferociously
And then he collapsed on ground
His heart had burst
As it could no more face
Force of his arguments
Ambulance came
Carried him to hospital
In evening that day
Two judges went to see him
In ICU unit of a prestigious hospital
As they were returning from hospital,
Younger Judge asked Elder Judge,
"How do you rate this lawyer?"
"He is a good lawyer, but not a good human being."
Elder Judge replied
(2)
In the mountains of Himalaya
Younger Lama asked Elder Lama
"How do Judges rate lawyers?"
"The judges rate lawyers by using physic's theory of Entangled Quantum Leap" replied Elder Lama
"What is this Entangled theory?" Asked Younger Lama
"Several elements are moving at different speed and space as per their nature. Then suddenly at an unexpected point, in an explainable way, a new element surfaces from nowhere. This is called Entangled Quantum Leap theory" replied Elder Lama
"And how do Judges use this theory to rate lawyers appearing before them?" Asked Younger Lama
"Judges observe behaviours and characters of lawyers and store these data in different areas of their brain.
Then when one judge discusses this lawyer with another judge, data from brain of one judge interacts with data in brain of another judge.
Reflection and deflection of data takes place.
A new rating of Lawyer takes place at an unexpected place in an unexplainable way.
And thus Entangled Quantum Leap Rating of lawyer takes place."
Elder Lama explained the process
Haresh Raichura
1/4/2015
Copyright : Haresh Raichura 2014. All Rights reserved.
The case of validity of Judicial Appointment Act is referred to 5 judges Bench of Supreme Court.
It is CJI who has to constitute a bench of 5 Supreme Court Judges to hear this case.
It is for these 5 judges to consider whether the Act should be stayed or not.
The speculation about it's stay or no stay, is presently immature, particularly when Act is yet to be notified by Government.
Haresh Raichura
9/4/15
Mostly, advocates have authority to withdraw any case or appeal.
Sometimes it is in interest of clients to withdraw case.
Sometimes, client feels that his advocate has wrongly withdrawn a case.
Then he can move an application to Court stating that he had not instructed his advocate to withdraw case.
In that case, if grievance is genuine, the court may recall its order and may place the case for fresh hearing.
If High Court refuses to do so, a SLP can be moved to Supreme Court.
Today in one such case, SC accepted that clients had not given authority to advocate to withdraw their appeal. SC set aside order of Gujarat High Court and directed rehearing of case.
Haresh Raichura
9/4/15